Section 377 Then and Now: How Indian Courts Are Debating Gender Identity Laws

The Supreme Court of India is currently hearing petitions challenging the infamous Section 377 of the Indian Penal Code (IPC), which criminalises homosexuality. Rooted in colonial-era criminal jurisprudence, the case has sparked a fierce debate in the country.

Noting the swiftness with which the courts have concluded the proceedings, it remains only a matter of time before the section is read down to its most benign form. Yet, it is important to note that it has been almost two decades since the first petition to declare Section 377 as unconstitutional was filed in the Delhi High Court.

The ride since then has been bumpy with the High Court and the Supreme Court shifting their position and perception on the matter. The first petition filed in 2001 came to be rejected by the Delhi High Court in 2004. However, the Supreme Court took a different view of the subject and remitted the matter back to High Court for fresh adjudication in 2006.

Delhi High Court Judgment

The judgment of the Delhi High Court came in 2009 and it struck down the Section to the extent it criminalised consensual sexual acts of adults in private. It continued to govern non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors till 2012.

Thereafter, it was reversed to its original form by the Supreme Court in 2012. It should be noted that the Delhi High Court judgment came before the Protection of Children from Sexual Offences Act, 2012 (POCSO) was enacted and thus, was restricted to remove the Section in its entirety which offered protection to minor victims.

Another noteworthy aspect of the Delhi High Court judgment was that it didn’t require any explicit declaration of a fundamental right to privacy. It was able to strike the Section down within the available framework of right to privacy jurisprudence in India.

The ruling Bharatiya Janata Party (BJP)-led union government has chosen not to contest the importance of retaining the section. But, the former United Progressive Alliance (UPA)-led has taken two different stances before the Delhi High Court.

The submissions from the side of the government tried to restrict the interpretation of Section 377 to the sexual acts alone, ignoring the fact that these acts themselves were predominantly associated with a class of persons.

It had agreed through the Ministry of Health and Family (MHF) that Section 377 pushed the activities of the people belonging to the LGBTQ community underground due to lack of ‘safe places’, thus hampering AIDS prevention efforts. On the other hand, through the Ministry of Home Affairs (MHA), it had argued that Section 377 was essential in light of the lacunae in rape law (discussed later).

It had also argued, at length, how it was opposed to public morality and the possibility of opening the floodgates of homosexual and ‘delinquent’ behaviour. This submission was found to be ad absurdum in contrast to the impact of decriminalisation in other countries alongside the government’s own admissions against Section 377.

The submissions from the side of the government tried to restrict the interpretation of Section 377 to the sexual acts alone, ignoring the fact that these acts themselves were predominantly associated with a class of persons.

The petitioners correspondingly contented that the section was violative of Article 14, 19 and 21 of the Indian constitution. Insofar as Article 14 is concerned, the section doesn’t differentiate between consensual and non-consensual sex, and unfairly targets homosexual community as a class.

Further, Article 15 – which prohibits discrimination on the basis of ‘sex’ – is to be read in an expansive sense to include sexual orientation, a contention the Delhi High Court accepted. It also creates structural impediments to the exercise of freedom of speech and expression secured under Article 19. Finally, it unjustly infringes upon the right of privacy and a dignified life.

The Delhi High Court, in order to nullify the section, delved into the concept of human dignity, the inherent right to privacy and its expression in sexual orientation, the impact of criminalisation on the LGBTQ+ community, and global action trends in favour of decriminalisation and further affirmative action to protect the rights of the community.

The Delhi High Court differentiated between public and constitutional morality while holding that the pursuit of public morality was not a valid ground for restriction of right in Article 21.

The Court observed that the section rendered the people belonging to the community as “unapprehended felons” and condemns in perpetuity a sizable section of society, forcing them to live their lives in the shadow of harassment, exploitation, humiliation, and degrading treatment in the hands of the law enforcement machinery.

The Court also differentiated between public and constitutional morality while holding that the pursuit of public morality was not a valid ground for restriction of right in Article 21. This differentiation has been invoked more distinctly in the present petition before the Supreme Court.

Thus, the High Court found the Section to be unfairly and disproportionately targeting the community – particularly men who have sex with men – in violation of Articles 14, 15 and 21.

Suresh Koushal and the Supreme Court reversal

In 2013, the High Court judgment that whittled down Section 377 was overturned in the Suresh Koushal vs. Naz Foundationcase. The judgment is replete with vague and flawed reasoning and can be seen as an unnecessary limitation of judicial power.

While legislative perception is a credible consideration for the Court, it is not the sole consideration to render laws constitutional or unconstitutional

The Supreme Court demarcating the presumption of constitutionality for Section 377, observed that there had been 30 amendments in IPC since India’s independence – the latest being in 2013 – and yet there was no repeal of Section 377. Even after the recommendation of 172nd law commission report and the High Court judgment, the Supreme Court observed that the Parliament hadn’t moved to repeal the section, which should guide the understanding of the scope, ambit, and character of the section.

In this process, the apex court converted a rebuttable presumption of constitutionality into a conclusive one. It should be noted that while legislative perception is a credible consideration for the Court, it is not the sole consideration to render laws constitutional or unconstitutional.

Thereafter, the Supreme Court went into the judicial interpretation of Section 377 through precedents to conclude that there was no uniform test to classify acts as ‘carnal intercourse against the order of nature’. The court held that Section 377 is applicable irrespective of age and consent and regulates through prohibition the sexual conduct regardless of gender identity and orientation.

Thus, the Supreme Court, analysing the contours of Article 14, held that those who engage in carnal intercourse against the order of nature constitute a different class and cannot claim that the section suffers from vagueness and arbitrariness. This reasoning is flawed. In the same sentence, the Court, while conceding that there was no uniform test to classify an act as ‘carnal intercourse against the order of nature’ (due to its obvious vagueness), held that people who engage in such intercourse constituted a different class.

Thus, it becomes apparent that the classification of people having ‘carnal intercourse against the order of nature’ is not based on intelligible differentia.

The Supreme Court further observed that the High Court overlooked that the fact that a minuscule portion of the population constitutes as LGBT community and only 150 people have been prosecuted under the section in the last 200 years. The Court further held that Section 377 neither mandated nor condoned harassment, blackmail and torture of the LGBT community.

the classification of people having ‘carnal intercourse against the order of nature’ is not based on intelligible differentia

The court, citing Sushil Kumar Sharma v. Union of India, held that mere possibility of abuse of a provision of law does not per se invalidate legislation. Thus, the court finally held that Section 377 did not suffer from any constitutional infirmities as held by HC judgment.

This observation constitutes a flawed understanding of the very concept of natural and fundamental rights which are not granted at the mercy of numerical significance but are inherent to the conception of every individual.

It held gender identity as one of the most fundamental aspects of life, which refers to a person’s intrinsic sense of being male, female, transgender or transsexual person. Further, the Court held that each person’s self-defined sexual orientation and gender identity is integral to their personality and is one of the most basic aspects of self-determination, dignity and freedom.

The Supreme Court has held gender identity as one of the most fundamental aspects of life, which refers to a person’s intrinsic sense of being male, female, transgender or transsexual person

It also affirmed that no one shall be forced to undergo medical procedures, including Sex Reassignment Surgery (SRS), sterilization or hormonal therapy, as a requirement for legal recognition of their gender identity.

The Court noted in the judgment how Section 377 has been used to harass the transgender community ever since the colonial times, as in the case of Allahabad High Court in Queen Empress v. Khairatiwherein a transgender person was arrested and prosecuted under Section 377 on the suspicion that he was a ‘habitual sodomite.’ The convict was later acquitted on appeal.

Although the court fell short of overruling Suresh Koushal due to constraints of being an equal bench, it did come close to disagreeing with its reasoning of Section 377 not being a source of harassment.

The Court noted in the judgment how Section 377 has been used to harass the transgender community ever since the colonial times

The right to privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution. Thus, equal protection demands protection of the identity of every individual without discrimination. The court also disagreed with the rationale presented by Suresh Koushal that lower rate of prosecution can be used as an index for violation of this right to privacy.

In a conjoint reading of the two judgements, it becomes apparent that Section 377, insofar as violating the rights of the LGBTQ community is concerned, would be struck down in the pending Navtej Singh Johar and Ors vs Union of India case in the Supreme Court.

Thus, once the inconsistent part of Section 377 is severed from the section, that is consensual intercourse against the “order of nature” is taken away from the section, what is left would govern the cases of involuntary (non-censensual) intercourse against the “order of nature” for men.

This legal proposition, far from being perfect, is what the present scenario can entail. The law still doesn’t protect the cases of penile-vaginal involuntary intercourse forced upon men by women and doesn’t treat it to be on par with Section 376 in terms of severity and punishment.

there are critical grey areas where protection can only be achieved by surrender of one’s fundamental rights of self-identifying sexual identity unless Section 377 is applied

Further, in order to gain protection under the Section 375, transgender persons are compelled to identify themselves as either male or female – an implicit rejection of their own gender identity.

Therefore, there are critical grey areas where protection can only be achieved by surrender of one’s fundamental rights of self-identifying sexual identity unless Section 377 is applied.

Lacunae in Rape Law

This brings us to the two lacunae in India’s rape law before the Delhi High Court before the judgment was pronounced: the absence of a law protecting children from sexual abuse; and the absence of a gender-neutral rape law. Since the enactment of POCSO in 2012, what is left to be dealt with is the latter.

Presently, under Section 375, which contains the definition of rape, only a man can commit the crime against a female victim. This means that Section 377 is the only section that provides protection to male victims of the offence. The Justice Verma Committee report, commissioned after the 2012 Nirbhaya Delhi Rape case, suggested gender-neutral and all-encompassing definitions with respect to rape victims.

in order to gain protection under the Section 375, transgender persons are compelled to identify themselves as either male or female

The Ordinance thereafter formulated based on the recommendation of the committee contained gender-neutral definitions for sexual offences including that of rape. But, that was not the case for the Criminal Law (Amendment) Act 2013 that superseded the Ordinance, which made it difficult for the entire Section to be dropped from the statute books.

Thus, unless the Parliament is willing to bring out expansive reforms, the truncated Section 377 would have to be retained in the statue books despite the pending Supreme Court verdict. But, the reading down would give the rights, liberties and aspirations of the LGBTQ+ community a significant push. It is hoped that Supreme Court will lay down affirmative steps and guidelines to ensure the same.

Anuj Aggarwalis a student of law at Delhi University’s Faculty of Law. He is also a former spokesperson for the Delhi University Students’ Union (DUSU).